Bass v. McLamb

150 S.E.2d 856 (1966) 268 N.C. 395

Fay Holbrook BASS
v.
John Oliver McLAMB and Marilyn S. McLamb.

No. 274.

Supreme Court of North Carolina.

November 2, 1966.

Gardner, Connor & Lee, by David M. Connor, Wilson, for plaintiff, appellant.

J. R. Barefoot, Benson, and Lucas, Rand, Rose & Morris, by Z. Hardy Rose, Wilson, for defendants, appellees.

BRANCH, Justice.

There are two questions for determination by the Court: (1) Does the evidence offered by the plaintiff make out a case of actionable negligence against the defendants? (2) Does the plaintiff's evidence, considered in the light most favorable to her, show that she was contributorily negligent as a matter of law?

Appellees do not seriously argue the question of whether there is sufficient evidence offered by the plaintiff to make out a case of actionable negligence against the defendants. However, we might observe in passing that our Court in the case of Saunders v. Warren, 267 N.C. 735, 149 S.E.2d 19, held: "`The operator of a standing or parked vehicle which constitutes a source of danger to other users of the highway is generally bound to exercise ordinary or reasonable care to give adequate warning or notice to approaching traffic of the presence of the standing vehicle, and such duty exists irrespective of the reason for stopping the vehicle on the highway. So the driver of the stopped vehicle must take such precautions as would reasonably be calculated to prevent injury, whether by the use of lights, flags, guards, or other practical means, and failing to give such warning may constitute negligence. * * *.' 60 C.J.S. Motor Vehicles § 335, pp. 779, 780; Mullis v. Pinnacle Flour & Feed Co., 152 S.C. 239, 149 S.E. 329."

The record discloses sufficient evidence to allow submission to the jury of the issue of actionable negligence of the defendants.

We must therefore determine the principal question presented for decision: Does the plaintiff's evidence, considered in the light most favorable to her, show that she was contributorily negligent as a matter of law?

The General Assembly of 1953 amended G.S. § 20-141(e) by adding thereto the proviso "that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits described by G.S. 20-141(b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator."

The appellees contend, with merit, that the provisions of this section do not dispense with the duty of the operator of a motor vehicle to operate the motor vehicle with due care.

This Court interpreted this amendatory act in the case of Burchette v. Davis Distributing Co., 243 N.C. 120, 90 S.E.2d 232, where Winborne, J. (later C. J.), speaking for the Court, said: "* * * if the driver of a motor vehicle who is operating it within the maximum speed limits prescribed by G.S. § 20-141(b) fails to stop such vehicle within the radius of the lights of the vehicle or within the range of his vision, the courts may no longer hold such failure to be negligence per se, or contributory negligence per se, as the case may be, that is, negligence or contributory negligence, in and of itself, but the facts relating thereto may be considered by the jury, with other facts in such action in determining whether the operator be guilty of negligence, or contributory negligence, as the case may be. However this provision does not apply if it is admitted, or if all the evidence discloses, that the motor vehicle was being operated in excess of the maximum speed limit under the existing circumstances as prescribed under G.S. § 20-141(b)."

There was no evidence that the vehicle operated by plaintiff exceeded the maximum speed limit prescribed by G.S. § 20-141(b). Therefore, the mere failure to see the snow-covered automobile on the highway in time to avoid the collision is not sufficient to support conclusively the defendants' allegations of contributory negligence. We must look to the record for other evidence to determine whether plaintiff failed to act with reasonable prudence.

"One is not negligent per se in driving an automobile on a highway covered with snow or ice. * * * The skidding of an automobile is not in itself, and without more, evidence of negligence." Wise v. Lodge, 247 N.C. 250, 100 S.E.2d 677.

We recognize the well-established rule that "A motion for judgment of nonsuit on the ground of contributory negligence will be granted only when plaintiff's own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion can be reasonably drawn therefrom." Johnson v. Wayne Thompson, Inc., 250 N.C. 665, 110 S.E.2d 306.

There are two lines of decisions in our Reports involving highway accidents, which turn on the question of contributory negligence. See Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251, and McClamrock v. White Packing Co., 238 N.C. 648, 78 S.E.2d 749. One line of decisions holds that contributory negligence as a matter of law bars recovery, and the other line holds that contributory negligence is an issue for the jury. In examining these cases we find that they primarily turn on factual differences.

Parker, J. (now C. J.), speaking for the Court in the case of Privette v. Lewis, 255 N.C. 612, 122 S.E.2d 381, in reference to these two lines of authority, stated: "Without attempting to analyze and distinguish the reasons underlying the decisions in those cases, they illustrate the fact that frequently the point of decision was affected by concurrent circumstances, such as fog, rain, glaring headlights, color of vehicles, etc., and that these conditions must be taken into consideration in determining the question of contributory negligence and proximate cause. `Practically every case must "stand on its own bottom. (Citing cases)."'"

In a per curiam opinion in the case of Montford v. Gilbhaar, 265 N.C. 389, 144 S.E.2d 31, where plaintiff drove into a cable extending across the highway from a towtruck to a wrecked car, which cable was difficult to see because of light and color, the Court held: "It is a jury question whether plaintiff operated his automobile at a speed greater than was reasonable and prudent under the circumstances, failed to keep his vehicle under proper control, or failed to maintain a reasonable lookout and should have seen the cable under prevailing weather conditions and the similarity of the color of the cable and the road. Nonsuit on the issue of contributory negligence should be denied when opposing inferences are permissible from plaintiff's proof." (Emphasis added)

There was a similar factual situation in the case of Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377, where there was evidence tending to show that a tractor was standing on its right of the highway with headlights shining down its lane of travel, but the trailer was crossways on the highway, without lights burning. The driver of a car approaching from the opposite direction had his headlights tilted down to avoid blinding motorists traveling in the opposite direction. He did not see the unlighted trailer in time to avoid the collision because the night was dark, rain and sleet were falling, and the trailer was spattered with mud, covered with sleet, or blended with the surrounding darkness. The evidence was held sufficient to warrant the jury's finding that the driver of the car acted as a reasonably prudent person and, therefore, to justify denial of motion to nonsuit on the ground of contributory negligence.

We are cognizant of the recognized law that a motorist is not required to anticipate that an automobile will be stopped on the highway ahead of him at night, without lights or warning signals required by statute, but this does not relieve him of the duty of exercising reasonable care for his own safety, of keeping a proper lookout, and proceeding as a reasonably prudent person would under the circumstances to avoid a collision with the rear of a vehicle stopped or standing on the road. Privette v. Lewis, supra.

It is a jury question whether plaintiff operated the automobile at a speed greater than was reasonable and prudent under the circumstances, failed to keep the vehicle under proper control, or failed to maintain a reasonable lookout and should have seen the snow-covered automobile under the existing weather conditions and the snowy surroundings.

The judgment of involuntary nonsuit is

Reversed.